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Freedom of Information Act 2000

Volume 488: debated on Tuesday 24 February 2009

With permission, Mr. Speaker, I should like to make a statement on the use of the ministerial veto under section 53 of the Freedom of Information Act, in respect of minutes of two Cabinet meetings in March 2003 relating to Iraq.

I need first to set out some background. The Freedom of Information Act has profoundly changed the relationship between citizens, and their elected representatives and the media on the one hand, and the Government and public authorities on the other. It has, as intended, made the Executive far more open and accountable. The Act provides a regime for freedom of information which is one of the most open and rigorous in the world.

The Act was the subject of almost three years’ intensive debate, by which the original scheme of the Bill was much improved and strengthened. As initially proposed, decisions of the Information Commissioner would in law have been heavily persuasive, but not binding on Ministers. This reflected the regimes in other countries, such as Canada. In the event, however, that scheme was replaced by a much tougher one.

There was, however, a key balancing measure written into the Act, and accepted by Parliament. This was to provide, in section 53, that in specific circumstances Ministers and certain others could override a decision of the commissioner or tribunal requiring the release of information, if they believed on reasonable grounds that the decision to withhold the information was in accordance with the requirements of the Act. At the time of the passage of the Bill, Ministers in both Houses provided reassurance about the use of this veto. It would not be commonplace. Undertakings were also given that, although section 53 required and requires a certificate by a single Cabinet Minister or Law Officer, any use of the veto would be subject to prior Cabinet consideration.

The Act came into force on 1 January 2005. From then until September 2008, in approximately 78,000 cases where the requested information was held by Government Departments, it has been released in full. Before the Act, some of it would not have been released for 30 years. Since 2006, the Information Commissioner has dealt with more than 1,500 cases involving Government Departments, and the Information Tribunal has dealt with more than 50 such cases. But no section 53 veto has been used to date.

In December 2006, the Cabinet Office received a freedom of information request for Cabinet minutes and records relating to the meetings that it held between 7 and 17 March 2003, where the Attorney-General’s legal advice concerning military action against Iraq was considered and discussed. There were two such meetings, on 13 and 17 March. The Cabinet Office refused the request, citing the Act’s exemptions for information relating to policy development and ministerial communications. In keeping with its statutory obligations, the Cabinet Office had considered the public interest in releasing the information, but found twice, on balance, that there was a greater public interest in withholding it.

The applicant duly exercised his right to ask the Information Commissioner to investigate the handling of his request. In February 2008 the commissioner reasoned, for the first time, that Cabinet minutes—these ones—should be released. The Cabinet Office appealed the commissioner’s decision to the Information Tribunal.

On 27 January 2009, the tribunal published its decision. The tribunal was unanimous in deciding that the informal notes of the Cabinet meetings should be withheld. But, by a majority of two to one, it decided that the public interest balance fell in favour of release of the minutes. It therefore upheld the decision of the Information Commissioner ordering information to be disclosed, subject to some minor redactions.

Following that decision, and having taken the view of Cabinet, I have today issued a certificate under section 53 of the Act in an appropriate form and consistent with the Act, the effect of which is that these Cabinet minutes will not now be disclosed. The conclusion that I have reached rests on the assessment of the public interest in disclosure and non-disclosure. I have laid a copy of my certificate, and a detailed statement of the reasons for my decision, in the Libraries of both Houses. My decision was made in accordance with the Government’s policy criteria, which are annexed to my statement of reasons. Copies of these documents have been sent to the requester and are available in the Vote Office.

To permit the commissioner’s and the tribunal’s view of the public interest to prevail would, in my judgment, risk serious damage to Cabinet government—an essential principle of British parliamentary democracy. That eventuality is not in the public interest. Cabinet is the pinnacle of the decision-making machinery of government. It is the forum in which debates on the issues of greatest significance and complexity are conducted. Whether the nation was to take military action was indisputably of the utmost seriousness. However, I disagree with the reasoning of the majority of the tribunal. In their decision, they refer to the “momentous” nature of the decision taken and to the public interest in understanding the approach to that decision and in the accountability of those who took the decision. They then say:

“In the view of the majority”—

of the tribunal—

“the questions and concerns that remain about the quite exceptional circumstances of the two relevant meetings create a very strong case in favour of the formal records being disclosed.”

But in my judgment, that analysis is not correct. The convention of Cabinet confidentiality and the public interest in its maintenance are especially crucial when the issues at hand are of the greatest importance and sensitivity. Indeed, the minority view of the tribunal—that the minutes should be withheld—was formulated on this basis. It stated:

“The minority view seeks to reach the decision most likely to support continued confidence that Cabinets can explore difficult issues in full and in private”.

It continued:

“publication would, in the minority view, be more likely than not to drive substantive collective discussion or airing of disagreement into informal channels and away from the record. This would over time damage the ability of historians and any inquiries, if constituted, to reconstruct and understand the process Cabinet followed in any particular instance. And it would not be conducive to good government.”

Responsibility for Cabinet decisions is with the Government as a whole, not with individual Ministers; that remains the first principle of the ministerial code. The conventions of Cabinet confidentiality and of collective responsibility do not exist as a convenience for Ministers. They are crucial to the accountability of the Executive to Parliament and to the people.

The concomitant of collective responsibility is that debate is conducted confidentially. Confidentiality serves to promote thorough decision making. Disclosure of the Cabinet minutes in this case jeopardises that space for thought and debate at precisely the point where it has its greatest utility. In short, the damage that disclosure of the minutes in this instance would do far outweighs any corresponding public interest in their disclosure.

What the minutes principally record is the deliberations of Cabinet in reaching its decisions. The actual decision that was made at the later Cabinet, on 17 March, was made public straight away, when I as Foreign Secretary conveyed it to the House in an oral statement within three hours of the Cabinet coming to that conclusion. In that statement, I recounted the recent history leading up to Cabinet’s decision, and I brought to the House’s attention the information that had that day been made available to the House, in order better to inform the following day’s debate.

Despite the powers under the royal prerogative, we put the use of force to a debate on a substantive motion the next day. In opening that debate, our then Prime Minister, Tony Blair, spelt out in considerable detail the reasons for the Cabinet’s decision. The debate ranged across the history of non-compliance of Saddam’s regime, the negotiating history of the two UN resolutions in the run-up to military action, our discussions with allies, and much else besides. I ended that debate by fully setting out the factors that the Government and Parliament had considered and should bear in mind in voting on the substantive motion before them.

The Government subsequently released the Attorney-General’s legal advice. Furthermore, on 25 May 2006 a full disclosure statement was published by the then Attorney-General which set out in considerable detail the considerations taken into account as he reached his opinion on the legality of military action.

A number of inquiries have been conducted. There was the Hutton inquiry into the death of David Kelly, and there was the Butler review of intelligence on weapons of mass destruction. Both those inquiries published detailed reports on aspects of the decision to take military action, and we have acted on their recommendations. There has been yet more scrutiny of the decision by Parliament itself, including by the Intelligence and Security Committee, which published its report on weapons of mass destruction, and both the Foreign Affairs Committee and the Defence Committee have investigated the matter on a number of occasions.

In summary, the decision to take military action has been examined with a fine-toothed comb; we have been held to account for it in this House and elsewhere. We have done much to meet the public interest in openness and accountability. But the duty to advance that interest further cannot supplant the public interest in maintaining the integrity of our system of government. The decision to exercise the veto has been subject to much thought, and it will doubtless—and rightly so—be the object of much scrutiny. I have not taken it lightly, but it is a necessary decision to protect the public interest in effective Cabinet government.

Shortly after he became Prime Minister, my right hon. Friend the Prime Minister established a high-level inquiry into the 30-year rule under the chairmanship of Mr. Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years of the time after which Cabinet minutes and other papers would automatically be released. I have already told the House that the Government favour a substantial reduction in the 30-year limit. In that context, the report also recommended that we consider protection under the Act for certain categories of information.

There is a balance to be struck between openness and maintaining aspects of our system of democratic government. This tension is recognised in the fundamental framework of the Freedom of Information Act—and that Act, and much else that we have done, stand testament to the far greater openness and accountability secured under this Government. I commend my statement to the House.

I first thank the Secretary of State for giving me prior sight of his statement.

The Secretary of State’s decision to use his powers of veto in this case classically illustrates what has been wrong with the Government’s approach to freedom of information and good governance generally. The public have had their expectations about openness raised by Labour’s spin and propaganda, only to be brought down to earth by the intrusion of the realities of government. Meanwhile, the inquiry that ought to take place into the origins of the Iraq war has been denied them.

May I first ask the Secretary of State whether there are any circumstances in which this decision of his might be further challenged in the courts?

One must have some sympathy for the Secretary of State. He was, after all, the architect of the Freedom of Information Act, which he is now trying to circumvent. As Foreign Secretary, he was a party to the decision to go to war. Indeed, he was the man who introduced the veto that he now intends to use. Does he recall the words at that time of the hon. Member for Stoke-on-Trent, Central (Mark Fisher), who said that that veto basically allowed the Home Secretary, as he then was,

“to put a razor through the whole bill”?

Does the Secretary of State appreciate how it will appear to the public for someone so closely involved in the key decisions to be now personally blocking the release of that information?

Is it not also the case that the Government’s self-righteous tone of protecting the public interest is fatally undermined by their past behaviour in releasing information—such as the Conservative Cabinet documents on the exchange rate mechanism—when it suited them, for reasons of the most blatant political advantage?

We are talking about Cabinet minutes and issues of the utmost national interest. As the Secretary of State has told the House that any use of the veto is subject to prior Cabinet consideration and agreement, should it not in fact be for the Prime Minister to justify this decision to Parliament, instead of playing his all-too-usual Macavity role and vanishing at this deeply embarrassing moment?

The code of practice on access to Government information introduced by the Major Government specifically and deliberately excluded minutes of Cabinet and Cabinet Committees, for the very reasons that the Secretary of State sets out in the statement of reasons he placed in the Library, and which plainly extend to all Cabinet minutes in general. Given what the Secretary of State has resorted to today, would it not be sensible to reintroduce that rule? In view of the principles that he has enunciated on the need for confidentiality at the heart of government, why did he have to string the applicant along through an internal review, an appeal to the Information Commissioner and a counter-appeal to the Information Tribunal—all at considerable public and private expense—when it was plainly a foregone conclusion that the Government would block the release of the information anyway? When did the Secretary of State take the decision that he would exercise the veto? Will he tell the House today what this entire process has cost?

The Secretary of State seeks to extol the Government’s good intentions by highlighting their changes to the 30-year rule. Why did the Prime Minister hold a review of the 30-year rule, if not to get the records available for public inspection more swiftly than is currently the case? Did he do so because he hoped that that review would conclude that the limit should be set so that the papers of the Conservative Government would be affected, while the background to the Prime Minister’s own decisions as Chancellor would remain concealed?

We accept, however, that the Secretary of State’s decision is the right one—[Interruption.] Yes, indeed. I am forced to disagree with the Information Commissioner when he says that such requests will have little impact because they will be rare. Quite the opposite. Because Ministers will not know in advance whether it will be deemed in the public interest to release their discussions, all discussions will be treated as though they could be released. It is clear from the Secretary of State’s statement that he agrees that if that were the case, officials would feel unable to give impartial advice freely, and Ministers would feel unable to discuss matters candidly, which would lead to even more sofa government than we have already suffered from him and his colleagues. May I therefore ask the Secretary of State when this damascene conversion by him, the Prime Minister and his Cabinet colleagues to those high principles of collective responsibility first took place? With the spin and briefings still going on today, none of us have noticed it.

Finally, does the Secretary of State agree with Lord Butler of Brockwell, when he found that in the case of the Iraq war,

“wider collective discussion and consideration by the Cabinet”

was limited

“to the frequent but unscripted occasions when the Prime Minister, Foreign Secretary and Defence Secretary briefed the Cabinet orally”,


“Excellent quality papers were written by officials, but these were not discussed in Cabinet or in Cabinet committee”

and that

“The absence of papers on the Cabinet agenda so that ministers could obtain briefings in advance from the Cabinet Office, their own departments or from the intelligence agencies plainly reduced their ability to prepare for such discussions”?

Do not those issues go to the heart of public disquiet over the way in which the Iraq war was initiated?

While we believe that it is right for Cabinet minutes to remain confidential for reasons of maintaining candour in government, that does not mean that the decision to go to war does not deserve scrutiny. The Secretary of State half concedes that point when he tries to gloss and explain that certain inquiries have already taken place. In the absence of the release of Cabinet minutes, is there not now an overwhelming case for an inquiry along the lines of that held into the Falklands war? When will the Government face up to their responsibilities in this regard, and stop hiding from their failures?

As the hon. and learned Gentleman blustered, I assumed that at some stage he would get to the point where he expressed agreement, not disagreement, with the issue of my certificate. Perhaps I should have said in my opening statement that we have been grateful for the bipartisan support we have had from senior and distinguished Conservatives, including Lord Hurd of Westwell, who gave evidence to the tribunal, Lord Heseltine and, quite separately, the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind).

The hon. and learned Member for Beaconsfield (Mr. Grieve) tries to make play of the fact that I was the architect of the Freedom of Information Act, and said that I was now trying to circumvent it. No, I am not trying to circumvent it; I am trying to apply an essential component of it. The Government would never have agreed to the Act, and would have invited the House to vote against the Bill, had it not been for the inclusion of section 53. I see one of the hon. and learned Gentleman’s colleagues on the Benches behind him nodding in assent at that.

The Act was intended to secure a better balance between openness and the protection of some information that is essential to the operation of good government and other matters, and it was intended that that tension should be reflected in the Act itself. This is not a simple matter, as the hon. and learned Gentleman knows, despite his desire—not all that successful—to have it both ways in his bluster. Section 53 is in place precisely to express that tension and to ensure that in certain circumstances, which are very clearly set out, it is possible for a particular Minister to exercise a veto in appropriate and specified cases.

The hon. and learned Gentleman asked why the Prime Minister is not giving this statement. It is a matter of the construction and drafting of all sorts of legislation that decisions of this kind are made by Secretaries of State or Law Officers, not by the Prime Minister. The hon. and learned Gentleman also asked why it was I who made the decision. I made it because it falls under my responsibilities, and I would have been accused of ducking it if I had not. It was also subject to deliberation in Cabinet. He asked me when I finally came to my decision. It was yesterday afternoon, after the final Cabinet discussion of the matter. He asked me what right of appeal there would be. There is no direct right of appeal prescribed in the Act, but it is perfectly possible that some interested party may attempt to secure a judicial review of the decision.

On the issue of an inquiry into aspects of the military action in Iraq and its consequences, as I said, there have already been at least four inquiries. I am well aware that the Prime Minister is on record as saying that once the troops are home he will consider the case for a further inquiry, but, with respect to the hon. and learned Gentleman, that is not and cannot be germane to this decision. Any inquiry established would certainly not be under freedom of information rules.

Can the Secretary of State confirm that the Freedom of Information Act is not to be used like Wikipedia, which people can add to and subtract from, and to which any fraudster can introduce themselves and distort the record? Will he reconfirm what he has just said—that 78,000 documents have been released under the Act? Is it not in accordance with our constitution, going back to Bagehot and others, that we have Cabinet Government and an Executive accountable to this House? If this House is not holding the Executive to account, it is this House that fails, and it does not need any Freedom of Information Act to fulfil its duties.

I agree with my hon. Friend in both respects. The Freedom of Information Act is a package deal. The House would not have been able to have the first establishment of the right of direct access to information without there being some concomitant balancing measure such as section 53. I think that that the House will confirm that, as this is the first time that that section has been exercised in more than four years of the Act being in force, we have kept our word and ensured that its use is exceptional.

The figure of 78,000 that I referred to was the number of requests, so that will cover many more than 78,000 documents. All those requests have been accepted by Government Departments without demur or argument. In the other 1,500 cases that have been before the commissioner, and the 50 before the tribunal, the decision has been accepted in each case as final, however much the Government might have objected to it in the first place. That is the position, and I am proud that we have ensured that freedom of information is subject to a far more open regime than existed under the previous Administration.

I also thank the Secretary of State for an advance copy of his statement. I am fascinated that the coalition that supported the Iraq war seems still to exist in the House. The decision to go to war in Iraq was momentous, controversial and disastrous. It was especially disastrous for the rule of international law and for this country’s reputation as an upholder of international law. It marks the point when the Government decisively endorsed the destructive doctrines of military neo-conservatism.

The Secretary of State says that various inquiries have been held into the Iraq war, but, as the current Foreign Secretary conceded last March, they were all narrow and specific. There has never been a full, comprehensive inquiry into the decision to go to war in Iraq. Will the Secretary of State give his full support for an inquiry, not as and when the Prime Minister decides, but now? We need to learn the lessons of that time as quickly as possible. That is why the Cabinet minutes should be released much earlier than normal.

Does the Secretary of State accept that the much greater threat to Cabinet government is not the release of the minutes, but any repeat of the collapse of Cabinet decision making in the Government of Mr. Blair? The argument against disclosure is that it might undermine full and frank discussion in Cabinet and mean that discussion will take place informally, outside the meeting. However, is not that precisely what happened under Mr. Blair, with the rise of sofa government? At least the prospect of disclosure in exceptional circumstances—the tribunal made it clear that it is not a matter of disclosing Cabinet minutes all the time, only in exceptional circumstances—might persuade future Cabinets to remember that Cabinet discussion should matter.

Am I right that Cabinet minutes do not generally give the names of the speakers, apart from that of the speaker who introduces the discussion? We are not considering the release of the Cabinet Secretary’s notebooks. Am I also right that it is a case not of revealing who agreed and who dissented—though, in this instance, we know that from the memoirs of the dissenters—but only of knowing whether discussion and challenge of any sort took place? That is a matter of great public importance, which goes to the heart of accountability.

The Secretary of State says that he has a good case on its merits. Why, therefore, has he chosen to issue an order—the first of its kind—rather than appealing to the High Court in the ordinary way? Why is he silencing opposition to his position by fiat instead of trying to persuade an objective court of its strength? Does not that show that, in reality, even he suspects that his position is weak, and that the decision has more to do with preventing embarrassment than protecting the system of government?

Well, certainly not the latter. There have been plenty of occasions to discuss the nature of the decision to go to war. I profoundly disagree with the hon. Gentleman’s description of the legal basis for the war and I have—and am happy to do so again in future—argued that the then Attorney-General, Peter Goldsmith, was entirely correct to advise that there was a lawful basis for the decision to go to war. Anybody who had months of intensive negotiation, as I had, about the line-by-line, word-by-word structure of what became resolution 1441 would know its legislative history and why we were justified in making the decision within international law.

The Butler inquiry was extensive and, yes, it criticised some aspects of the way in which the Government had operated. I have never been a fan of so-called sofa government, since the hon. Gentleman asks. What is more, the Government led by Tony Blair and now by my right hon. Friend the Prime Minister accepted and implemented the inquiry’s recommendations. However, that is not an argument for releasing the minutes for when the Cabinet was operating effectively; when it was, notwithstanding the criticisms, the final arbiter of the decision to take military action, and when it had discussed military action in not one or two, but, from recollection, 20 meetings.

What Cabinet minutes do is record the details of the deliberations, normally without attribution to individual Ministers, but with more attribution than perhaps the hon. Gentleman believes. In any event, my judgment—and I think that this would be the judgment of anybody who had served in a Cabinet—is that the degree of detail, which is properly and essentially given in Cabinet minutes, is such that if those minutes were published, not least in respect of very important issues and discussions, they would undermine, in the manner that I have described, the whole principle and basis of collective responsibility. As I have said, that is not a convenience for Ministers, but is essential for the accountability of Ministers to the House.

The last point that the hon. Gentleman raised was about why we had not chosen to put in an appeal under what I think is section 56 of the 2000 Act—no, section 59. The answer is this: an appeal to the High Court would arise on a point of law. There is no suggestion whatever in the structure of the Act that one should wait for an appeal to the High Court under section 59 before exercising a veto, effectively, under section 53. Under section 53, the accountable person is essentially substituting his or her judgment for the judgment made by the commissioner or the tribunal.

May I say to my right hon. Friend that it must be a source of considerable regret that the veto has been used for the very first time by the Government in this case? As it happens, I agree with him on the principle—that is, on the importance of the confidentiality of Cabinet proceedings. What I do not agree with him on is the application of that principle in the current case. What the case seems to turn on is not the content of Cabinet proceedings, but their conduct.

The point of the 2000 Act was to set up an elaborate system to get an external and independent determination of where the public interest lies, through commissioner, tribunal and court—it was not to be decided by Ministers, but independently—and they have decided that there is a public interest, in this exceptional case, in knowing about the conduct of Cabinet business during that decisive period when we went to war. I would like to know from my right hon. Friend why it is appropriate in this case to substitute ministerial judgment for that external judgment. Will the effect not simply be to confirm people in the belief that there is something in that period that needs to be hidden?

My hon. Friend took a very close interest in the debates on the Freedom of Information Bill as it was, as he and I will recall with some affection. Indeed, it was partly thanks to his efforts that the Bill as proposed by me originally was changed and strengthened. However, he will also recall that on Report in the Commons—a very long stage—he identified what he regarded as three ingredients for what he described as a compromise veto: first, there should be a collective Cabinet decision in respect of the veto; secondly, the scope should be narrower; and thirdly, such a veto should not apply to local authorities. We have effectively complied with all three of his conditions.

If, in the abstract, there was to be a provision for a veto, there was bound to be an occasion on which it would be used. It was put into the 2000 Act for a purpose. It has, in fact, not been used before, but it was almost inevitable that it would be used in respect of an issue that appeared to be controversial. The Government have bent over backwards, even when, in other circumstances, they believe that the commissioner or the tribunal has come to decisions that are inappropriate, to ensure full compliance with those decisions, because we are very committed to the spirit as well as to the letter of the Act. However, there was bound to be such an occasion, and in my judgment it was exactly this kind of occasion that the House and my hon. Friend had in mind when we agreed section 53.

Given the strength of the tribunal’s argument that this is a unique case setting no precedents, is it not particularly unconvincing for the right hon. Gentleman to argue that if the minutes were released, it would allow Ministers to demonstrate their attachment to any given policy in general, thereby absolving themselves from responsibility for decisions that they have agreed to stand by? Has the Justice Secretary not noticed that he is living in a world, and indeed a Government, where Ministers find all sorts of other ways of doing that, including on this issue?

The tribunal was far less “strong”—to use the right hon. Gentleman’s adjective—than he implied, as it was split 2:1. I urge him to read the minority as well as the majority judgment. Secondly, at no stage that I can recall did the tribunal say that this decision and these circumstances were unique, although it did say that they were of a very unusual nature. It said that the risk of setting a precedent for general application would be reduced, but it went on to say:

“This is not to say that it is only in such an extreme case as the present that disclosure should be ordered.”

So, it was far from saying in practice that the case was unique.

Surely the tribunal was right to recognise that there is no more momentous a decision made by a Parliament than to take its country into a war of choice. That is what makes this issue so specific and unique. The Justice Secretary and all Members will remember that at that time, the then Prime Minister, Tony Blair, frequently told the House that if we only knew what he privately knew, we would understand that the threat was real, that the war was necessary and the action was legal. We had to accept as ordinary Members that we were not privy to the information that was available at a Cabinet level through private security briefings. Cannot the Justice Secretary see that exercising the veto at this point will send out precisely the opposite message that he has tried to convey to the House and that the public will believe that in refusing to clarify whether the Cabinet were among the deceivers or the deceived, nothing is being protected other than their own interests? As such, the integrity of the House is being damaged.

Order. I have to consider other Back Benchers and if questions are too long, it is unfair to others.

I know that my hon. Friend disagrees—and he disagreed at the time—with the decision, but it was made in good faith and communicated immediately to the House with extensive explanation as to why the Cabinet had reached it. Insofar as the intelligence aspects of the war are concerned, they were thoroughly examined by the Butler inquiry. I come back to the point that I have made this decision following discussion and deliberation in Cabinet in order to protect an essential component of our constitution.

I was one who opposed the invasion of Iraq and I put it to the right hon. Gentleman, who was Foreign Secretary before the invasion, that it would be illegal under international law to invade without a second resolution from the United Nations. But I have never been an enthusiast for the Freedom of Information Act, largely for reasons of the working of Cabinet government and collective responsibility. The extraordinary thing about this particular case is that part of the then Attorney-General’s advice was made public and it has been discussed—indeed, the right hon. Gentleman actually gave some indication of what was contained in it. However, the damaging aspect of this case is that the Attorney-General of the day changed his advice between the first of those Cabinet meetings and the second and he did so under political pressure. If he did that, it was utterly disgraceful.

The Attorney-General has explained how he came to that decision. His advice and his further explanation have already been available for two years. That is a further indication of the openness with which we have approached this issue.

We need these minutes because Butler told us that the Cabinet was, in effect, dysfunctional. It did not get the papers that had been prepared by the Departments and Cabinet members did not have full knowledge of what they were being asked to decide. I ask my friend this: what is the point of having another inquiry on Iraq, as promised by the Prime Minister when our troops come home, if that inquiry does not have full access to all the Cabinet minutes and cannot take evidence on oath?

Were there to be an inquiry—I have already referred to the comments made in the House by my right hon. Friend the Prime Minister—it is almost certain that such an inquiry would indeed have access to all relevant documents, including Cabinet minutes, just as the Butler inquiry did, but that is a very different matter from whether those documents should be disclosed under the Freedom of Information Act—very different indeed.

The Justice Secretary will recall that I had the extreme pleasure of dealing with the Bill on behalf of the Opposition. I well recall that we warned that this eventuality might arise. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), who sits on the Front Bench, made the point that Labour Back Benchers were most critical of that aspect of the Bill.

Putting that to one side, I, along with my hon. and learned Friend, agree that the Justice Secretary has made the right judgment, but the problem is with the legislation itself. Can I not encourage him to take advantage of the consensus that clearly exists between him and the major opposition party to put the matter right? I also reinforce the argument that the way to get at that information is through a full inquiry into the reasons to go to war in Iraq, although we must preserve the opportunity for deliberations in Cabinet to remain secret if they are to be frank and candid.

I am very grateful to the hon. Gentleman for what he has said. He has the benefit of being correct and also consistent about this for more than 10 years. So far as an opportunity to look at the Act is concerned, recommendation 8.8 of the Dacre review said, as I indicated in my statement, that if the minimum period for the release of documents generally was reduced, as he recommended, from 30 years to 15, but even if it came down to, say 20, there would need to be consideration of changes to the Freedom of Information Act provision in this respect. We are actively considering that. I am happy to do it in conjunction and co-operation with the Opposition.

Has the Justice Secretary looked behind him to see that there are only two office holders—a Parliamentary Private Secretary and the Church Commissioner—who support him? Not a single one of his hon. Friends is here endorsing him today. Could it be that they are ashamed and embarrassed by this announcement? Will he not reflect on the fact, which really is breathtaking, that he, who clearly was one of the people who piloted this policy and persuaded us—I remember him, as it is photographed on my mind, promising that we would get the second UN resolution—should also decide that those documents should not be available? It is appalling.

It is also a bad day for Parliament when we get synthetic anger from the Opposition, who are cosying up—the Privy Council club closing down debate and discussion on things that must be revealed.

I bear the scars of having trusted the Prime Minister on this matter and I shall take to the grave the fact that I regret having listened to the porky pies and the stories of the Intelligence and Security Committee and of the Prime Minister. I shall regret it to the day I die. I should never, ever have trusted them.

I understand my hon. Friend’s concern, but on the issue of whether it was correct for me to be the person who issued the certificate, I say to him that it is inevitable that, if the section 53 power is to be used in normal circumstances, a Minister may well end up in the position that I am in as the accountable Minister, having been party to a decision some years before. Of course I thought about that, but I was faced with a situation whereby if I had decided to recuse myself, although I do not think that there is an inherent conflict of interest, I would have been accused—no doubt by the hon. and learned Member for Beaconsfield (Mr. Grieve)—of dodging my responsibilities, so I was unwilling to do that.

Let me also say to my hon. Friend—through you, Mr. Speaker—that the decision, though it is mine, has been made after very careful discussion by the Cabinet as a whole.

Is not the Secretary of State tilting at false windmills? He knows perfectly well that no sensible person wants to reveal all Cabinet discussions and no sensible person wants to curtail honest discussion in Cabinet, but does he not agree with the commissioner and the tribunal that this is a special case? Surely the people have a legal right to know the legal basis of a war in which up to 600,000 people have died. This whole thing stinks.

We are not trying to curtail discussion. What we accuse the Government of is the absence of any proper discussion of the Attorney-General’s statement and advice. We want to have answers now, and so do the public.

That is the hon. Gentleman’s opinion, and it was also—although slightly more carefully put—the opinion of the majority of the tribunal. However, if the hon. Gentleman refers to paragraph 88 of the tribunal’s decision document, he will see that the minority expressed what was essentially the view that I have taken: that

“Exceptional cases may create an exceptional need for confidence in Cabinet confidentiality to be strong.”

Essentially, the hon. Gentleman is arguing that the more important the issue, the less significant should be Cabinet confidentiality. I do not accept that argument.

When this provision was passed during a highly contentious debate on the Freedom of Information Bill in Committee on the Floor of the House, it was described by the then Home Secretary—the present Lord High Panjandrum—as “Executive override”. We are now seeing the very heart of the defeat of what was that Bill. This is an exercise by the Executive to exclude full and proper debate on matters that go to the very heart of the public interest.

The Secretary of State cited the second paragraph of “Reasons for Decision” in stating that this was an exceptional case. He then invoked a minority decision as justification for his action. The fact is that this “Executive override” defeats the very purpose of an informed public opinion that can make a judgment, in the public interest, on the actions of those who are given the trust of this people to govern this country.

I do not accept what the hon. Gentleman has said for one moment. Along with my hon. Friend the Member for Cannock Chase (Dr. Wright), he was very active in the debates in Committee and on Report nearly 10 years ago, and he should claim some credit for the final position of the Act. He will surely acknowledge, however, that an essential and fundamental component of that Act was a powerful commissioner and a powerful tribunal but also—yes, for use in exceptional cases—a right, under section 53, for the Secretary of State. If he looks at the report of what I said then, he will see that I said that we would not use the provision very often. Well, we certainly have not done so.

The Secretary of State has effectively said today that he is using his exceptional section 53 power to protect elected politicians who attended a Cabinet meeting. Can he confirm that he would not be able to use section 53 in respect of the release of correspondence between the then Chief of the Defence Staff and the Prime Minister, also about the legality of the war? The Chief of the Defence Staff reportedly wrote to the Prime Minister of the day seeking his assurance that British troops would not be hauled before a tribunal for war crimes if the war went ahead.

I hope that the hon. Gentleman will forgive me. I am not going to give legal advice across the Chamber about the application of section 53. It stands there, and he can look at it.

May I remind the Secretary of State that I was one of those who voted against war in Iraq? Indeed, I drafted a motion with the aim of securing a full inquiry. Unlike the Liberal Democratic party, Lord Smith and I were responsible for drafting the anti-war motion that Mr. Speaker selected.

That said, however, I think that the right hon. Gentleman is wholly right. I do not believe that Cabinet documents that reflect Cabinet discussion can be or should be disclosed. The right hon. Gentleman is right in that respect. Where he is wrong is in withholding an early and full inquiry into the war. We are entitled to that. We need to know what happened in the lead-up to the war, we need to know why it was so badly handled, and we need to know the full extent of the legal advice. All that will come out in an inquiry, but the right hon. Gentleman is right on the narrow point: Cabinet documents should not be disclosed.

I am very grateful to the right hon. and learned Gentleman, who took a different view from me in respect of the military action, for what he has said. As the House will understand, this is not the occasion for making decisions about an inquiry into aspects of the military action. My right hon. Friend the Prime Minister said in this House on 18 December last year:

“I have always said that this”—

an inquiry—

“is a matter that we will consider once our troops have come home. We are not in that position at present, so it is not right to open the question now. That is the course of action that the Foreign Secretary, I and others have stated to the House on many occasions.”—[Official Report, 18 December 2008; Vol. 485, c. 1239.]

This secrecy has absolutely nothing to do with the public interest and everything to do with the profound embarrassment of the Labour Government, which is why they are suppressing information about going to war. How ironic it is that we have a Justice Secretary making this announcement who only a few short years ago was telling us it was essential to go to war because of weapons of mass destruction when there were none. How can this culture of secrecy, and the delay of an independent inquiry, possibly restore the trust of the public?

The issue of the intelligence failure has already been very well charted, including by the Butler inquiry, which had full access to Cabinet and many other documents.

I am not a supporter of the Freedom of Information Act as currently constituted, although I do not think we should be surprised if there is a right of veto and if it is used. However, given that the then Prime Minister disclosed the thinking in the Cabinet when the decision was made, given that the legal advice was made public, and given that four inquiries were serviced with information, what is the logic behind not taking the final step of revealing the discussions in the Cabinet, if not to hide the Government’s embarrassment on this issue? Does the Secretary of State not accept that if the reasons he has given to the House today are to be consistent, the logical position would be simply to have no Cabinet papers revealed?

I do not accept the hon. Gentleman’s conclusion, and Cabinet documents are routinely released after 30 years, and we are committed to reducing the period following the recommendations of the Dacre report. This is nothing whatever to do with embarrassment, but it is to do with the distinction I drew in my statement between the decisions of Cabinet and the deliberations behind those decisions. In this case, the decision of Cabinet could not have been communicated to this House more quickly; as it happens, it fell to me to make a statement within two hours of the Cabinet coming to its decision on 17 March, and to explain the factors that led the Cabinet to that decision. That is very different from minutes recording the nature of the deliberations.

Is it not ironic that a Government who have for so long made a virtue of taking Cabinet decisions away from Cabinet with spin doctors in tow and undermining Cabinet responsibility have dared to come to this House today to try and uphold the sanctity of Cabinet discussions? If the principle of preserving the sanctity of Cabinet discussions is so important, which I agree with, why did the Secretary of State not exempt it entirely from the Freedom of Information Bill when it went through the House, and why is it that 99 per cent. of the time he is happy for officials and the judiciary to make decisions on freedom of information requests, but on this one occasion he has chosen to use his veto?

I have already explained why, in the unusual circumstances of this case, I have decided that a section 53 certificate is appropriate. Notwithstanding all the bluster from those on the Opposition Benches, it seems to be a mechanism that has been supported in all parts of the House. As for the nature of Cabinet government, the hon. Gentleman has a very short memory. As it happens, in my 12 years of experience, Cabinet government has survived and is thriving. If the hon. Gentleman wants to find a Government where Cabinet government was rather absent, he may like to look at the history of the Thatcher Government and the role of Sir Bernard Ingham.